Opinion
No. M2007-00419-CCA-R3-PC.
Assigned on Briefs August 15, 2007.
Filed January 3, 2008.
Direct Appeal from the Circuit Court for Robertson County; No. 01-0197; John H. Gasaway, III, Judge.
Judgment of the Circuit Court Affirmed.
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clyde Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the court, in which Jerry L. Smith and Alan E. Glenn, JJ., joined.
OPINION
The petitioner, Clyde T. Smith, appeals the denial of his petition for post-conviction relief. He contends that trial counsel was ineffective for failing to anticipate or raise a challenge to the enhancement of his sentence as unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296 (2004). We acknowledge, pursuant to Blakely; Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856 (2007); and State v. Edwin Gomez II, No. M2002-01209-SC-R11-CD, 2007 Tenn. LEXIS 884, at *1 (Tenn. Oct. 9, 2007), that portions of our previous sentencing scheme have been declared unconstitutional. However, neither Blakely,Cunningham, nor Gomez II, applies to the facts of this case because the career offender statute found by the trial court was the result of prior convictions not prohibited by the cases cited above and the trial court did not enhance the petitioner's sentence based upon a finding of facts that the above cited cases hold must be found by a jury. Upon these facts, the trial court had no discretion but to impose the only sentence provided for by law, fifteen years. The judgment denying post-conviction relief is affirmed.
The petitioner was found guilty after a bench trial of selling less than 0.5 grams of a Schedule II controlled substance, cocaine (Class C felony). After a sentencing hearing, the trial court found that the petitioner was a career offender and sentenced him to the only available sentence, fifteen years, with a release eligibility of sixty percent. His convictions and sentence were affirmed on appeal, and a Rule 11 application for permission to appeal was denied.See State v. Clyde Smith, No. M2002-02138-CCA-R3-CD, 2003 WL 21877666, at *1 (Tenn.Crim.App. Aug. 5, 2003), perm. to appeal denied (Tenn. Dec. 8, 2003).
Thereafter, he filed a petition for post-conviction relief, which was denied. The only issue presented in this appeal dealt with whether trial counsel was ineffective for failing to anticipate or raise an issue regarding the enhancement of the petitioner's sentence. While the petitioner's case was pending and on appeal, several important cases have been filed:
1) Blakely v. Washington, 542 U.S. 296 (2004);
2) Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856 (2007); and
3) State v. Edwin Gomez II, No. M2002-01209-SC-R11-CD, 2007 Tenn. LEXIS 884, at *1 (Tenn. Oct. 9, 2007).
Simply, none of the above cited cases prohibit the sentence the petitioner received in this case, and the trial court's denial of post-conviction relief must be affirmed.